CHAPTER V. The greater liberality of the old law, as regards personal property. unambiguous language. There is just reason to apprehend that, from the total neglect of both these considerations, many involuntary intestacies will occur, and much hardship be consequently inflicted. While the range of testamentary volition is enlarged, its convenient exercise is crippled. The facilities afforded by the old law of testaments (as distinguished from the law of devises (a)) for the final arrangement of a man's affairs, at a moment when ceremony would be impertinent; for the unsuspected diversion of his bounty into new channels, when secrecy may be prudence, or even a higher virtue; for the indulgence of an inclination, which statutes may thwart but can never extinguish, to add, alter, obliterate, restore, as prosperous or untoward fortune, broken friendships, returning kindness, or, perhaps, fancy may dictate; all these must now be exchanged, by the great body of the people, for certain rigid observances; and the general feeling, so long enjoyed, of perfect testamentary freedom, as regards personal property-that ever-fluctuating mass, demanding instant means to meet the new circumstances which its fluctuations createmust be succeeded by a general feeling of restraint. Such is the contracted character of laws, when legislafounding gene- tion, selecting and magnifying a few cases of fraud, folly, or oppression, and studious chiefly to hit those partial blots, which it as often misses, forgets what ought to be its higher aim, the general convenience, and vainly labours to establish a system of civil discipline in the ordinary concerns of life. The principles which really guard the exercise of the proprietary right against injurious excess, and which place the great interests of society, as respects property, beyond the reach of individual caprice, are to be found in the law which governs the settlement The consequence of ral laws on particular in stances. (a) Ante, 342, 348. of estates (b);-within the limits prescribed by the policy of that law, the disposing power should be allowed to exert itself as freely as possible. It often happened, under the old law, that a will was void, as to freehold estates, from the non-observance of the statutory requisite of three witnesses, but that the heir, unable to reconcile the legal right with the moral obligation, gave effect to the declared intention of the testator. So general and inveterate is the impression as to the validity of unattested wills of personal estate, and so disproportionate and unsuitable are the ceremonies imposed to the circumstances of the great majority of testators (c), that next of kin may be placed, yet more frequently, in the same delicate position; and whether interest or good feeling shall prevail, the policy of the legislature will be equally condemned. Two witnesses were required under the notion that litigation would be greatly diminished, if informal and imperfect papers were no longer admissible to probate; but the requisition, except so far as it may operate to diminish the number of valid wills, will hardly realise that expectation. Wills complying, but barely complying, with the forms prescribed by the act, may be most informal papers; so easy is it to multiply ceremonies, so difficult, where the public feeling and convenience are not in unison with the spirit of their institution, to secure their solemn observance. The testator, and both (d) the (6) Vide post, Illustrations, IV.; ante, 131. (c) "The inconvenience of requiring the presence of two witnesses is very trifling, and it will be unnecessary to let them know that they are attesting a will." Fourth Rep. of Real Prop. Com. Now, as the act requires the joint VOL. I. BB presence of the witnesses, and as it (d) See Prest. Shep. Touch. CHAPTER V. Questions of construction will not be less frequent than before. witnesses, may be marksmen; in short, the will may be well executed by making three blots, without disclosing the character of the instrument, without any clause of attestation, and, perhaps (e), without any really attesting witness. Nor would formality of execution, if formality could be enforced, ensure accuracy of expression, for it is familiar, that very ill-penned wills are often executed and attested in the most orderly manner; questions of construction would probably bear the same proportion as before to the number of effective instruments, and, in consequence of the increased resort to advisers who have acquired legal forms without legal ideas, prove, perhaps, the more embarrassing, because springing from the worst source of obscurity-an unskilful use of technical language. Since acts of parliament cannot endue men with business-like habits, the same class of persons who made loose memoranda before, will make them still, and frequent intestacies, to be silently endured, will be substituted for the litigation, more obtrusive, but less injurious, which occasionally sprung from imperfect papers, and was, indeed, the natural result of a free volition universally exercised. But even if the effects were fully answerable to the views of the framers, still it might be asked, why society at large should be deprived of a portion of its rational liberty, for the protection of the improvident Codicils will be few, or for the greater ease of the judicature? One conmultiplied. sequence of the newly imposed ceremonies will probably be to multiply the number of codicils,-those dangerous appendages; but which will now be made the vehicles of small bequests liable to frequent alteration (ƒ). (e) Vide post, 371, n. (g). than one witness should not be necessary to the validity of any will, and he should not be required to sign in the presence of the testator." Ib. CHAPTER V. wills: lunatics? 2. But we proceed to consider the new enactments respecting the witnesses. A witness, then, to a will may be, Witnesses to first, a person infamous for crime, or even (as some con--felons; quære, tend (g)) of unsound mind (h); and if both the witnesses should happen to be inadmissible in a court of judicature, the due execution of the will must be presumed, for it could not be proved; or, secondly, a creditor, or (by con- creditors; struction, not in terms (i)) the wife or husband of a creditor, whose debt is charged by the will, and that without depriving the creditor of the benefit of the charge; thirdly, an executor; fourthly, a beneficial devisee or legatee (k), -executors, devisees, legaor the wife or husband (1) of such a devisee or legatee; tees. but the legislature, considering that disqualification from interest would render the attestation of less value than disqualification from any other cause, has annulled the beneficial gift in order to render the witness admissible, though if he should also happen to be incapacitated by felony, he would, of course, forfeit his legacy without any such result; and if there should be two disinterested witnesses, besides an attesting legatee, still the legacy would be void (m). Where the testator signs by the hand of anoit has been doubted, whether that person can ther person, Whether a per son signing for the testator may CHAPTER V. be also an attesting witness; and, though nothing in the be also a wit- language of the statute, or in the nature of the duties, appears to create any disqualification, the same person should not, unnecessarily, be made to perform both duties. ness. General insecurity of titles which depend on the due exe cution of wills. The general result of the new law, respecting the execution and attestation of wills, is to exact in all cases observances more burthensome than those of the Statute of Frauds, and even less clearly defined; while by admitting witnesses, (if the term be not misapplied), whose testimony cannot be received in a court of judicature, the guarantee for a due compliance with those ceremonies is weakened. Under the old law, in consequence, chiefly, of the then old statutory requisites, there was always danger in accepting a title to freehold estates from a devisee, without the concurrence of the heir; now, it should seem that purchasers of property, of whatever species, will be exposed to a similar, and, from the nature of the new requisites, an increased risk; for a testament of personalty, as well as a devise of realty, not in fact executed and attested according to the statute, would be a nullity; and though probate, unrepealed, is generally conclusive evidence of a testament, yet, as, where a writing is admitted to probate in common form, the only evidence adduced to the ecclesiastical judge of the due execution and attestation is that which the writing itself affords (n), no assurance arises from such probate that the grant is not revocable ab initio for want of a compliance with the statute. As regards titles, the effect will be, that though no title, to realty or personalty, derived under a will made since the statute, can, unless supported by, at least, a solemn declaration of the witnesses, or, in the case of real estate of inheritance, confirmed by the heir, be pronounced even reasonably safe, yet, the title will be marketable, or, in other words, be such a title as a court of (n) See Wms. Ex. 207. |